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Monday, September 5, 2011

The battle for marriage equality in California (Prop 8) is back in the hands of the California Supreme Court. Do the sponsors of Proposition 8 have a legal right, or standing, to defend the state law and appeal a federal judge's ruling striking it down when California's Governor and Attorney General refuse to do so?

The stakes are high.

The federal judges, in their request to the California Supreme Court (because the California Supreme Court is the sole interpreter of California law), highlighted a key concern in the case -- that a Governor and an Attorney General could "effectively veto the initiative" by refusing to defend it in court.

If the California Supreme Court sides with Proposition 8 sponsors, it would propel the legal battle forward, with the case then going to the U.S. Supreme Court.

A group of local governments, led by Santa Clara County, have urged the California Supreme Court to rule against the right of ballot measure sponsors to defend a state law, saying it would "create legal uncertainty for cities and counties" to turn that power over to private citizens.

We are thankful that Kentucky Constitutional Amendments must first pass the Kentucky House and Senate before going to the people for a vote. In Kentucky, propositions do not exist and "the people" cannot veto legislation passed by the House, Senate, and signed by the Governor effectively making them obsolete.

The Kentucky Constitution protects us from such propositions (someone with a pen who can get enough signatures to place something for a vote directly to the people and make it a Constitutional Amendment); this is a dangerous practice, several states who allow these propositions (also called the People's Veto) have overrode the state Legislative and Governor and made marriage equality illegal again in their State.

In the Commonwealth of Kentucky, before a Constitutional Amendment can be proposed to "the people," it must first pass the Kentucky House and Senate.

The fate of the legal battle over California's ban on gay marriage no longer turns on the constitutional rights of same-sex couples to wed -- at least for now.

Instead, the latest chapter in the ongoing drama over gay nuptials rests on an arcane but critical legal procedure that dazzles legal scholars, torments first-year law students and forms the DNA of most every lawsuit that unfolds in the nation's courts.

On Tuesday, the California Supreme Court will hear arguments over how that procedure, known as legal "standing," applies in the ongoing tussle over Proposition 8, the 2008 voter-approved law that restored the state's ban on same-sex marriage. Specifically, the justices will consider whether sponsors of Proposition 8 have a legal right, or standing, to defend the state law and appeal a federal judge's ruling striking it down when California's governor and attorney general refuse to do so.

The stakes are high. If the Supreme Court concludes that Proposition 8 backers do not have the right to appeal the ruling, it could slam the door on their efforts to keep the law in place and pave the way for same-sex weddings to resume in California. And if the Supreme Court sides with Proposition 8 sponsors, it would propel the legal battle forward, with the case widely expected to ultimately reach the U.S. Supreme Court.

Experts say it is anybody's guess what the state Supreme Court will do.

The Proposition 8 case has taken a tortured path back to the state Supreme Court, which upheld the law after it was approved by a 52 to 48 percent vote. Last summer, after conducting an unprecedented trial in federal court, former San Francisco Chief U.S. District Judge Vaughn Walker struck down the law, finding it violated the federal equal protection rights of same-sex couples.

But Proposition 8 sponsors appealed Walker's ruling to the 9th U.S. Circuit Court of Appeals on their own because state officials, including Gov. Jerry Brown and Attorney General Kamala Harris, agreed with Walker's conclusion. The attorney general ordinarily defends challenges to state laws, but in this rare case opted to drop any appeals.

The 9th Circuit then asked the state Supreme Court to address whether California law permits backers of ballot initiatives to defend them in such situations. Under ordinary circumstances, courts require a direct stake in the outcome of a legal controversy to qualify for legal standing, a standard muddied in the Proposition 8 case by the usual role of state officials to handle the defense of state laws.

The federal judges, in their request, highlighted a key concern in the case -- that a Governor and an Attorney General could "effectively veto the initiative" by refusing to defend it in court.

A group of local governments, led by Santa Clara County, have urged the Supreme Court to rule against the right of ballot measure sponsors to defend a state law, saying it would "create legal uncertainty for cities and counties" to turn that power over to private citizens.

--> Posted by a volunteer Community Blogger of Kentucky Equality Federation. This is the official blog of Kentucky Equality Federation. Posts contained in this blog may not be the official position of Kentucky Equality Federation, its volunteer officers, directors, management, supported organizations, allies or coalitions, but rather the personal opinions or views of the volunteer Community Bloggers. The opinions or views expressed in the blog are protected by Section 1 of the Constitution of the Commonwealth of Kentucky as non-slanderous free speech; blogs are personal views or opinions and not journalistic news sites.

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This is the official blog of Kentucky Equality Federation. Posts contained in this blog may not be the official position of Kentucky Equality Federation, its volunteer officers, directors, management, supported organizations, allies or coalitions, but rather the personal opinions or views of the volunteer Community Bloggers. The opinions or views expressed in the blog are protected by Section 1 of the Constitution of the Commonwealth of Kentucky as non-slanderous free speech; blogs are personal views or opinions and not journalistic news sites.

"Many people and groups are victims of discrimination. Some are discriminated against because of their sexual orientation, sexual identity, race, gender, veteran status, or political identification (or lack thereof). Discrimination takes many forms, and it is necessary that the victims of such treatment strive for a better world where all groups, orientations, identities, creeds, and political groups can achieve equality." - Josh Koch, Vice President of Policy and Public Relations.

This is the official blog of Kentucky Equality Federation. Posts contained in this blog may not be the official position of Kentucky Equality Federation, its volunteer officers, directors, management, supported organizations, allies or coalitions, but rather the personal opinions or views of the volunteer Community Bloggers. The opinions or views expressed in the blog are protected by Section 1 of the Constitution of the Commonwealth of Kentucky as non-slanderous free speech; blogs are personal views or opinions and not journalistic news sites.